EXHIBIT 10.2
AMENDMENT TO
CCC INFORMATION SERVICES LOAN DOCUMENTS
(TO INCREASE PERMISSIBLE AMOUNT OF CAPITAL EXPENDITURES)
THIS AMENDMENT TO THE CCC INFORMATION SERVICES LOAN DOCUMENTS (as may be
amended, modified and otherwise supplemented from time to time hereafter,
this "Amendment") is made and effective as of September 30, 1997 (the
"Amendment Closing Date"), by and among CCC INFORMATION SERVICES INC., and
CCC VEHICLE DAMAGE ESTIMATORS, INC. (each, including any successor or
permitted assignee thereof, a "Borrower"; collectively, the "Borrowers"), and
CCC INFORMATION SERVICES GROUP INC., AND CERTIFIED COLLATERAL CORPORATION OF
CANADA, LTD. (each, including any successor or permitted assignee thereof, an
"Other Primary Obligor") (Borrowers and each Other Primary Obligor are
sometimes referred to herein individually as an "Obligor" and collectively as
the "Obligors"), and the Lenders that are parties to the Credit Agreement (as
defined below), and SIGNET BANK, as a Lender and as Administrative Agent for
the Lenders (including any successor, transferee and assignee thereof,
"Signet Bank" or "Administrative Agent").
R E C I T A L S
WHEREAS, Borrowers, each Lender and Administrative Agent have entered
into a certain Credit Facility Agreement dated as of August 22, 1996 (as
amended and modified prior to the date hereof, the "Original Credit
Agreement"; as amended hereby and as may be further amended and modified
hereafter, the "Credit Agreement") pursuant to which Borrowers can borrow up
to $20 million from Lenders from time to time on a senior secured basis; and
WHEREAS, Borrowers desire to amend the Original Credit Agreement so as
to increase the yearly amount of capital expenditures that Borrowers are
permitted to make; and
WHEREAS, each Obligor has determined that it is in its best interest to
execute this Amendment inasmuch as each such Obligor will derive substantial
direct and indirect benefits from the increase in the yearly amount of
permitted capital expenditures and the continued funding of the Advances by
Lenders pursuant to the Credit Agreement; and
WHEREAS, Lenders are willing to accommodate the Obligors upon and subject
to the terms, conditions and provisions of this Amendment;
NOW, THEREFORE, for good and valuable consideration (receipt and
sufficiency of which are hereby acknowledged) and intending to be legally
bound hereby, each Obligor, each Lender and Administrative Agent hereby agree
as follows:
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ARTICLE 1: THE AMENDMENT AND SUPPLEMENT
1.1 CAPITAL EXPENDITURES -- REVISED. Section 5.1 of the Original
Credit Agreement is hereby amended and restated in its entirety as follows:
"5.1 Borrowers (on a consolidated basis) will not incur
Capital Expenditures in any fiscal year in excess of $10 million.
NOTWITHSTANDING THE FOREGOING, no Borrower may make any such Capital
Expenditure that otherwise violates any covenant under the Loan
Documents or otherwise causes a Default hereunder. For purposes of this
Section, Capital Expenditures (a) will include all capitalized software
costs, but (b) will exclude Customer Equipment purchases and up to
$900,000 in leasehold improvements to be incurred prior to December 31,
1997."
ARTICLE 2: MISCELLANEOUS
2.1 LOAN DOCUMENT: DEFINITIONS. This Amendment is a Loan Document
executed pursuant to the Credit Agreement and (unless otherwise expressly
indicated herein) is to be construed, administered and applied in accordance
with the terms and provisions thereof. Capitalized terms used herein without
separate definitions have the meaning ascribed to such terms in the Original
Credit Agreement (if such a definition exists therein) or in the other Loan
Documents. The rules of construction and the number and gender provisions
under Article 9 of the Original Credit Agreement are also applicable herein.
2.2 BINDING AND GOVERNING LAW. This Amendment has been delivered by
Borrowers and the other Obligors and has been received by Administrative
Agent in the Commonwealth of Virginia. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. This Amendment shall be governed as to its validity,
interpretation, construction and effect by the laws of the Commonwealth of
Virginia (without giving effect to the conflicts of law rules of the
Commonwealth of Virginia).
2.3 SURVIVAL. All agreements, representations, warranties and
covenants of any Obligor contained herein or in any documentation required
hereunder shall survive the execution and delivery of this Amendment and
(except as otherwise expressly provided herein) will continue in full force
and effect until terminated in accordance with Section 10.11 of the Credit
Agreement.
2.4 NO WAIVER: DELAY IN ACTING. Except as expressly set forth herein,
the execution, delivery and performance of this Amendment shall not act as a
waiver of any Default or any right, power or remedy of Administrative Agent
or any Lender under any Loan Document or any other agreements and documents
executed in connection herewith or therewith and shall not constitute a
waiver of any provision thereof.
2.5 HEADINGS. The various headings in this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
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2.6. PRIOR AGREEMENTS. This Amendment shall completely and fully
supersede all other and prior agreements and correspondence (both written and
oral) by and between Obligors, any Lender or Administrative Agent concerning
the terms and conditions of this Amendment.
2.7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts with the same effect as if all the signatures on such
counterparts appeared on one document. Each such counterpart shall be deemed
to be an original, but all such counterparts together shall constitute one
and the same instrument.
2.8. WAIVER OF SUBROGATION. Until the security interests hereunder
are terminated in accordance with Section 1.6 of the Credit Agreement, each
Obligor hereby irrevocably waives any claim or other rights which it may now
have or may hereafter acquire against any other Obligor that arise from the
existence, payment, performance or enforcement of such Obligor's obligations
under the Loan Documents, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, any right to participate in
any claim or remedy of Administrative Agent or any Lender against any other
Obligor or any collateral which Administrative Agent or any Lender now has or
hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including the right to take
or receive from any Obligor (directly or indirectly) in cash or other
property, by set-off or in any manner, payment or security on account of such
claim or other rights. If any amount is paid to any Obligor in violation of
the preceding sentence at a time when the indebtedness or any other amounts
owing to Lender under the Credit Agreement or any other Loan Documents has
not been paid in cash in full (unconditionally and indefeasibly), then such
amount shall be held in trust for Administrative Agent and the Lenders, and
shall forthwith be delivered to Administrative Agent (at Administrative
Agent's option) to be credited and applied upon the indebtedness (whether
matured or unmatured) or to be held as additional collateral under the
Collateral Security Documents. Each Obligor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
the Credit Agreement and that the waiver set forth in this Section is
knowingly made in contemplation of such benefits.
2.9. WAIVER OF SURETYSHIP DEFENSES. Each Obligor hereby waives any
and all defenses and rights of discharge based upon suretyship or impairment
of collateral (including, wihout limitation, lack of attachment or perfection
with respect thereto) that it may now have or may hereafter acquire with
respect to Administrative Agent or any Lender or any of its obligations
hereunder, under any Loan Document or under any other agreement that it may
have or may hereafter enter into with Administrative Agent or any Lender.
2.10. WAIVER OF LIABILITY. Each Obligor (a) agrees that neither
Administrative Agent nor any Lender (nor any directors, officers, employees
and agents of Administrative Agent or any Lender) shall have any liability to
any Obligor (whether sounding in tort, contract or otherwise) for losses or
costs suffered or incurred by any Obligor in connection with or in any way
related to the transactions contemplated or the relationship established by
any Loan Document, or any act, omission or event occurring in connection
herewith or therewith, except for foreseeable actual losses resulting
directly and exclusively from Administrative Agent's or such Lender's own
gross negligence, willful misconduct or fraud and (b) waives, releases and
agrees not to xxx upon any claim against Adminsitrative Agent
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or any Lender (or their directors, officers, employees or agents) whether
sounding in tort, contract or otherwise, except for claims for foreseeable
actual losses resulting directly and exclusively from Administrative Agent's
or such Lender's own gross negligence, willful misconduct or fraud. Moreover,
whether or not such damages are related to a claim that is subject to the
waiver effected above and whether or not such waiver is effective, unless
Administrative Agent or any Lender is adjudged to be guilty of criminal
conduct that caused such damages, then neither Administrative Agent nor any
Lender (nor any directors, officers, employees and agents of Administrative
Agent or any Lender) shall have any liability with respect to (and each
Obligor hereby waives, releases and agrees not to xxx upon any claim for) any
special, indirect, consequential, punitive or non-foreseeable damages
suffered by any Obligor in connection with or in any way related to the
transactions contemplated or the relationship established by any Loan
Document, or any act, omission or event occurring in connection herewith or
therewith; and if Administrative Agent or any Lender is adjudged to be guilty
of such criminal conduct, then each Obligor will be entitled to the types of
compensation (including, as applicable and appropriate, special, indirect,
consequential, punitive or non-foreseeable damages) as and to the extent
available under applicable law.
2.11. FORUM SELECTION: CONSENT TO JURISDICTION. Any litigation in
connection with or in any way related to any Loan Document, or any course of
conduct, course of dealing, statements (whether verbal or written), actions
or inactions of Administrative Agent or any Lender or any Obligor will be
brought and maintained exclusively in the courts of the Commonwealth of
Virginia or in the United States District Court for the Eastern District of
Virginia; provided, however, that any suit seeking enforcement against any
Obligor, any Collateral or any other property may also be brought (at
Administrative Agent's or such Lender's option) in the courts of any other
jurisdiction where such Collateral or other property may be found or where
Administrative Agent or such Lender may otherwise obtain personal
jurisdiction over any Obligor. Each Obligor hereby expressly and irrevocably
submits to the jurisdiction of the courts of the Commonwealth of Virginia and
of the United States District Court for the Eastern District of Virginia for
the purpose of any such litigation as set forth above and irrevocably agrees
to be bound by any final and non-appealable judgment rendered thereby in
connection with such litigation. Each Obligor further irrevocably consents to
the service of process by registered or certified mail, postage prepaid, or
by personal service within or outside of the Commonwealth of Virginia. Each
Obligor hereby expressly and irrevocably waives, to the fullest extent
permitted by law, any objection which it may have or hereafter may have to
the laying of venue of any such litigation brought in any such court referred
to above and any claim that any such litigation has been brought in an
inconvenient forum. To the extent that any Obligor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgement, attachment
in aid of execution or otherwise) with respect to itself or its property,
then each Obligor hereby irrevocably waives such immunity in respect of its
obligations under this Amendment. Notwithstanding the foregoing, if
Administrative Agent or any Lender at any time commences litigation against
Obligators in a state court of the Commonwealth of Virginia
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at a time when and with respect to a cause of action that at the time may
also be properly maintained in the United States District Court for the
Eastern District of Virginia (including, without limitation, satisfaction of
personal and subject matter jurisdiction and other procedural prerequisites
to maintaining such action), then neither Administrative Agent nor any Lender
will contest or object to a timely motion by Obligors to transfer such action
to such federal court provided that such action can at the time of such
transfer be maintained with respect to all parties and all causes of action
identified by Administrative Agent or such Lender.
2.12. WAIVER OF JURY TRIAL. Administrative Agent, each Lender and
each Obligor each hereby knowingly, voluntarily and intentionally waives any
rights it may have to a trial by jury in respect of any litigation (whether
as claim, counter-claim, affirmative defense or otherwise) in connection with
or in any way related to any of the Loan Documents, or any course of conduct,
course of dealing, statements (whether verbal or written), actions or
inactions of Administrative Agent, any Lender or any Obligor. Each Obligor
acknowledges and agrees (a) that it has received full and sufficient
consideration for this provision (and each other provision of each other Loan
Document to which it is a party), and (b) that it has been advised by legal
counsel in connection herewith, and (c) that this provision is a material
inducement for Administrative Agent and each Lender entering into the Loan
Documents and funding Advances thereunder.
2.13. CONSTRUCTION. The language in all parts of this Amendment and
the other Loan Documents in all cases shall be construed as a whole according
to its fair meaning.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned (where appropriate, by their duly
authorized officers) have executed this Amendment, as an instrument under
seal (whether or not any such seals are physically attached hereto), as of
the day and year first above written.
ATTEST: CCC INFORMATION SERVICES INC.
(BORROWER)
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
------------------------ ----------------------------
Name: XXXXXX X. XXXXXX Name: Xxxxxxx X. X'Xxxxxxx
------------------ -----------------------
Title: VP Secretary Title: Treasurer
------------------ -----------------------
[CORPORATE SEAL]
ATTEST: CCC VEHICLE DAMAGE
ESTIMATORS, INC. (BORROWER)
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
------------------------ ----------------------------
Name: XXXXXX X. XXXXXX Name: Xxxxxxx X. X'Xxxxxxx
------------------ -----------------------
Title: VP Secretary Title: Treasurer
------------------ -----------------------
[CORPORATE SEAL]
ATTEST: CERTIFIED COLLATERAL
CORPORATION OF CANADA, LTD.
(OBLIGOR)
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
------------------------ ----------------------------
Name: XXXXXX X. XXXXXX Name: Xxxxxxx X. X'Xxxxxxx
------------------ -----------------------
Title: VP Secretary Title: Treasurer
------------------ -----------------------
[CORPORATE SEAL]
ATTEST: CCC INFORMATION SERVICES
GROUP INC. (OBLIGOR)
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
------------------------ ----------------------------
Name: XXXXXX X. XXXXXX Name: Xxxxxxx X. X'Xxxxxxx
------------------ -----------------------
Title: VP Secretary Title: Treasurer
------------------ -----------------------
[CORPORATE SEAL]
WITNESS: SIGNET BANK (ADMINISTRATIVE AGENT
AND A LENDER)
By: By: /s/ Xxxxx X. Xxxxxxxx
------------------------ -------------------------------------
Xxxxx X. Xxxxxxxx, Xx. Vice President
WITNESS: LASALLE NATIONAL BANK (A LENDER)
By: By:
------------------------ ----------------------------------
Xxxx X. XxXxxxx, Vice President
ATTEST: CCC INFORMATION SERVICES
GROUP INC. (OBLIGOR)
By: By:
------------------------ ----------------------------
Name: Name:
------------------ -----------------------
Title: Title:
------------------ -----------------------
[CORPORATE SEAL]
WITNESS: SIGNET BANK (ADMINISTRATIVE AGENT
AND A LENDER)
By: By:
------------------------ -------------------------------------
Xxxxx X. Xxxxxxxx, Xx. Vice President
WITNESS: LASALLE NATIONAL BANK (A LENDER)
By: By: /s/ Xxxx X. XxXxxxx
------------------------ ----------------------------------
Xxxx X. XxXxxxx, Vice President
